Opinion
Submitted October 4, 1935
Decided November 19, 1935
Appeal from the Supreme Court, Appellate Division, Second Department.
Samuel L. Marcus and Eli Bensky for appellant.
George M. Welch for respondent.
A contract between these parties for the sale and purchase of real property provides that all sums paid on account and the reasonable expense of examining title are made liens. After plaintiff as vendee had made a down payment to defendant as vendor and had incurred expenses for examining the title, it rescinded the contract on the ground of fraud and brought this action for the purpose of foreclosing its vendee's lien and filed a notice of lis pendens. Defendant moved to cancel the notice on the ground that this action is not one to recover a judgment affecting the title to real property. At Special Term the motion was denied but the Appellate Division reversed on the law and certified to this court the question: "Should the defendant's motion to cancel the notice of pendency of action have been granted?"
Section 120 of the Civil Practice Act authorizes the filing of a notice of lis pendens in an action brought to recover a judgment affecting the title to, or the possession, use or enjoyment of real property. If the purpose of this action, as disclosed by the complaint, is to foreclose a lien on real property, then certainly this is such an action as falls within the contemplation of section 120. Perusal of the allegations of the complaint leaves no room for doubt that the purpose of this action is the foreclosure of a lien on real property and, therefore, that it is an action brought to recover a judgment affecting the title to real property. The Appellate Division based its reversal on the ground that plaintiff, having rescinded and repudiated the contract for fraud at its inception, cannot have a lien on the premises and relied for this proposition on the decisions by this court in Elterman v. Hyman ( 192 N.Y. 113) and Davis v. Rosenzweig Realty O. Co. ( 192 N.Y. 128). Whether this court, when the question is properly presented, will regard these cases as controlling in their application to the case at bar is a question in which some doubt may be involved. Yet even if accepted as binding precedents on the merits, the question is not now before us. The ultimate result of litigation may not be decided on an interlocutory motion of this character. Since the purpose of the action is one enumerated in section 120 of the Civil Practice Act, the notice of pendency may not be canceled for the reason that a court, looking into the future, may conclude that plaintiff will not on the merits finally prevail. So long as this action is pending, the notice may not be canceled. ( Mills v. Bliss, 55 N.Y. 139; Schomacker v. Michaels, 189 N.Y. 61, 65; Beman v. Todd, 124 N.Y. 114; St. Regis Paper Co. v. Santa Clara Lumber Co., 62 App. Div. 538.)
The order of the Appellate Division should be reversed and that of the Special Term affirmed, with costs in this court and in the Appellate Division. The question certified should be answered in the negative.
CRANE, Ch. J., LEHMAN, HUBBS, CROUCH, LOUGHRAN and FINCH, JJ., concur.
Ordered accordingly.